Leiden Law Blog

New: A Ph.D. in Law. US Developments and the Demands of Legal Research

In addition to the array of innovative law programs it offers, Yale Law School will start a Ph.D. in Law. It might be surprising for Europeans that such a program did not yet exist at Yale. As a matter of fact, however, no law school in the US has thus far offered a Ph.D. program solely focusing on law. Yale’s program is something new, and will potentially change the route into a legal academic career generally taken in the US. But how does the debate on the demands of legal scholarship over there reflect on the current state of our own academic training?

Explaining the need for a Ph.D. in Law, Dean Robert Post of Yale Law School said that ‘in the past few decades, legal scholarship has matured as an academic discipline’. Entry-level law professors are expected to have already done high level research, and this would be why increasing numbers of aspiring legal academics today pursue Ph.D’s in allied disciplines like economics or political science. However, ‘because such disciplines train students in standards and questions that are different from those of the law, the natural next step for the legal academy is to create our own Ph.D. program that can focus on the questions and practices of the law itself’.

Some applaud the fact that Yale is giving promising students the possibility as well as the financial freedom—Ph.D. students will get a waiver of the cost of tuition and will receive a stipend to cover living expenses—to become skilled in the art of doing legal research. Others cynically comment that ‘law schools need more professors with no real-world experience about as much as the nation needs more unemployable law school graduates’. Noticeable is also the criticism propelled by experienced (European) legal academics that the Yale program is expectingtoo much. Ph.D. students will have three years to finish either a ‘book-length manuscript’ or ‘three, significant, publishable articles’. The first of their three years will however be spent on coursework and examinations (focusing on canonical legal scholarship and methodologies), and only thereafter Ph.D. students should finalize their research prospectuses, while still another two semesters will be dedicated to teaching. Will this result in in-depth research and innovative monographs that contribute to the legal discipline, or should Yale worry about delays instead? The demanding program might be reason for students to write three articles rather than a book; nevertheless, given the significant length of heavy-footnoted US law articles, this is also not a guarantee of (timely) success.

The debate surrounding Yale’s announcement signals several tensions that are also apparent in the context of Dutch Ph.D. programs. It is good to note that Dutch programs—in law but also elsewhere—differ from the Yale program as well as from most of their European counterparts. Ph.D. researchers in the Netherlands are not fee-paying students but instead most of them have applied for one of the limited Ph.D. positions at a (legal) faculty that offer them a salary as well as the means for doing research, in exchange for a high quality dissertation (or articles) and some teaching. This allows them to gain experience in all that happens at legal faculties on a daily basis, and in most cases includes the privilege of being well-guided in finding their way into the academic world. Nevertheless, also here a lot of time goes into courses that train researchers to become methodologically skilled but also experienced teachers, while free time for reading and thinking is (or should be) the one big luxury of a Ph.D. program. When externally funded positions—a lot of Ph.D. positions depend on funding by the Netherlands Organisation of Scientific Research (NWO)—are brought back to three years, or when other (financial) considerations require dissertations to be finished quicker, time pressure can stand in the way of developing original outlooks and creating innovative work.

Developing the first US Ph.D. program in law, Yale can no doubt learn a lot from European experiences. At the same time, however, the debate on the pros and cons of Yale’s new program also contains an important reminder for us. The fact that Yale will start to offer a Ph.D. in Law recognizes the fact that law is a specific discipline, that asks particular questions and requires a certain kind of answers. It stresses the uniqueness, but also the high demands of successful legal research. As critical observers note, however, recognizing the particularities of legal research and appreciating these in order to ensure the flourishing of the discipline, also requires the investment of (more) time. As expectations are rising in Europe as well, it is good to be reminded of that.

Although available online for over three years, The Devil Corp has yet to challenged in a court of law and that’s an amazing fact considering the nature of the site. Is their refusal to act an admission of guilt?

What sets Yale’s new PhD in law apart from the JSD (which, in a completely absurd turn of events, will continue to be offerred by Yale) is that the PhD in law will be open to American graduates only. Much like the American-based LL.M. programs, which have become de facto second-tier degrees granted by American law schools to only non-American students***, the JSD is now destined to become a second-tier doctorate for ‘the others.’ This is highly disconcerting.

Because of Yale’s reputation, it is not hard to imagine that other American law schools will soon follow suit. The not improbable outcome will be that American legal academia will be split into two distinct spheres, one for American lawyers and the other for non-American lawyers. While this is still defensible, though controversial, at the first law degree level (JDs vs. LLMs), one has to wonder why in the world non-American law graduates would choose to get their doctorate in a country which creates an artificial distinction between academic research done by American lawyers and ‘others,’ i.e. non-American lawyers.

A doctorate is a doctorate. It proves that you have mastered the art of serious academic research and it should entitle you to teach law at a law school. This new PhD in law program, if other American law schools follow suit, will create separate pools of applicants for law teaching jobs: American PhDs in law and non-American JSDs.

Judging by the current ‘success rate’ of JSD applicants (very low), the JSD is doomed to become another LL.M. For those not familiar with the American legal job market, you should have a look at some of the vacancies posted online… almost always, eligibility requirements state “bar admission and J.D. required.” It doesn’t matter if you’re admitted to the bar after your LL.M. The LL.M. is just a second-tier make believe degree anyway. The JSD will soon be that as well. Thank you, Yale for making sure that this discriminatory practice continues.

***The only American JDs getting LLMs are ones who have JDs from so-called ‘lesser’ American law schools.

Add a Comment

Name:Name (required)

Email:E-mail (required)

Don't put anything here

Please enter the word you see in the image belowPlease enter the word you see in the image below (required)